Lawfare

Judging Politics in South Africa

Michelle le Roux, Dennis Davis

• Publisher: Jonathan Ball
• Year: 2019
• ISBN:
  9781868429615
• Topic: Law
• Subtopic: Courts
• Index: Law

What happens when South Africa's tumultuous political life becomes entangled in the courts of law?

Throughout the past 50 years, the courts have been a battleground for contesting political forces as more and more conflicts that were once fought in Parliament or in streets, or through strikes and media campaigns, find their way to the judiciary. Certainly, the legal system was used by both the apartheid state and its opponents. But it is in the post-apartheid era, and in particular under the rule of President Jacob Zuma, that we have witnessed a dramatic increase in 'lawfare': the migration of politics to the courts.

The authors show through a series of case studies how just about every aspect of political life ends up in court: the arms deal, the demise of the Scorpions, the Cabinet reshuffle, the expulsion of the EFF from Parliament, the nuclear procurement process, the Cape Town mayor – the list goes on and on.

This book offers a highly readable analysis of some of the most widely publicised and decisive instances of lawfare. It argues that while it is good that the judiciary is able to shoulder the burden of supporting democracy, it is showing signs of immense strain under the present deluge of political cases. Whether the courts will survive this strain undamaged remains to be seen.

1

THE ASCENDANCY OF LAWFARE

‘The Nkandla moment presented that opportunity to interact with our people and to tell them about the legal, constitutional and normative underpinning of public power and why we are duty bound to deploy it honestly [and] effectively in order to produce good outcomes and to produce a just society.’1

–FORMER DEPUTY CHIEF JUSTICE DIKGANG MOSENEKE, 28 January 2017

‘This judgment signifies unfettered encroachment of the judiciary into the realm of the executive – pandering to the whims of the opposition who want to co-govern with the popularly elected government through the courts.’2

–ANC NATIONAL SPOKESPERSON ZIZI KODWA Reacting to an order that President Zuma must disclose his reasons for his 2017 cabinet reshuffle

‘Politics itself is migrating to the courts … Conflicts once joined in parliaments, by means of street protests, mass demonstrations, and media campaigns, through labour strikes, boycotts, blockades, and other instruments of assertion, tend more and more … to find their way to the judiciary. Class struggles seem to have metamorphosed into class actions.’3

–JEAN AND JOHN L COMAROFF

‘You ain’t seen nothing yet’

–BACHMAN TURNER OVERDRIVE, 1974

The birth of democracy in 1994 held out the promise of the construction of a new nation, in which the equality, dignity, freedom and humanity that could unite all South Africans would replace the systemic racism, sexism, discrimination, exclusion and homophobia that had fractured the country throughout its history. That possibility is contained in the Constitution, the foundational text for South Africa’s new society. The Constitution is both allocative and normative, meaning that it assigns roles and imposes obligations upon various institutions, organs of state and spheres of government, while it also prescribes the creation of a new society described in compelling terms in its pages.

Key to the constitutional democratic state established by the Con-stitution is the concept of separation of powers. As the label suggests, this is the creation of three distinct arms of government, each with its own interrelated powers – the executive, legislature and judiciary. Each is assigned a specialised role to build the society promised in the Constitution. The executive formulates policy and implements legislation passed by Parliament, which is the sole lawmaker in the republic. The conduct and performance of the executive and the legislature are, in turn, subject to judicial scrutiny.

Underpinning this interlocking scheme is the principle of legality, or the notion that all public power is sourced in the Constitution, expressed in national legislation and exercised in a way that needs to be rational, fair and reasonable. In other words, government has no authority or power other than that sourced in the Constitution – hence it is referred to as ‘the supreme law’. With the Constitution, there is no royal prerogative power or any other residual power for those who govern our country.

And all public power is held accountable – to the courts, to Parliament and to the key institutions created by Chapter 9 of the Constitution to support constitutional democracy. These are the Public Protector, the South African Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General and the Electoral Commission.

As an aside, readers are forgiven if they have only heard of about three and a half of these institutions and then only of those whose leaders were distinguished by either spectacular incompetence or striking excellence at fulfilling their mandates. The ‘Chapter 9s’ are supposed to be partners in advancing the Constitution’s transformative project, as well as scrutinisers of government power and performance. They are important because they further support our faith in law and the Constitution, our fidelity to the constitutional scheme of governance, and our commitment to the transformative outcomes prefigured in the Constitution. A society of dignified, free and equal South Africans, as described in the Constitution, is both the goal and the measure of our progress towards it. Unfortunately, we have still far to go in having the Chapter 9s fulfil our expectations of them as we do in ensuring that the constitutional promise is the lived reality of all South Africans, rather than racialised inequality and poverty.

The political, social and economic promises contained in the Constitution were framed as legal claims. These claims are expressly made in the Bill of Rights (Chapter 2 of the Constitution). Hence it should have been foreseen that struggles for both the political and economic rights set out in the Constitution would be increasingly fought in the courts once politics had failed to deliver immediate redress, transformation and justice to the victims of apartheid.

When we wrote Precedent & Possibility: The (Ab)use of Law in South Africa, we were concerned at the time of writing in 2008 that, if politics failed (or even if government was simply ineffective), the courts alone would not be able to power this journey away from apartheid and towards constitutional nirvana. For this reason, we warned that a turn to lawfare carried its own risks for the constitutional enterprise, which, at the time, was scarcely a decade and a half old. The concern was that political struggle by active citizens, civil-society groups, political parties and organised labour should not be converted into litigation alone. Displacing our constitutional political project (of ‘nation-building’ or ‘transformation’ for ‘the rainbow nation’) into legal processes fails for two reasons. First, litigation is slow, often incremental and relatively narrow in what it can change. Politics should be more responsive and comprehensive in reflecting the will of the people. Secondly, pending litigation seems to halt other processes or institutions from delivering on their obligations to realise the constitutional vision of our society, facilitated by a competent and capacitated state. Cabinet ministers and other public servants seem to feel that they are ‘off the hook’ while litigation about something for which they are responsible proceeds. The country waits for judgments at each level of the court system, rather than seeing its government deliver services and meaningful change. All of the arms of government and institutions of state in all spheres of government must do their bit. The constitutional project works only if all of its parts are functional and engaged and deliver on their mandates.

We had underestimated the extent of this rush towards litigation. The degradation of state institutions began relatively slowly. But by the end of a decade, a parallel state with compromised heads of security and law-enforcement agencies, including the critical revenue service, was revealed (see the revelations at the commissions of inquiry into state capture and the South African Revenue Service [SARS], for example). Parliament became as politically sheepish as the head of the National Prosecuting Authority (NPA). The courts stood alone as a credible institution – hence the intensification of lawfare during this past decade.

The exponential increase in lawfare

We have described the use of the courts in this fashion as constituting a form of lawfare, a term we borrowed from John and Jean Comaroff, who observed that, as society increasingly uses law as a means of control, the targets of the state invoke the cry of human rights to persuade courts that law has an intrinsic quality of accountability, certainty and the recognition of the basic freedom of the individual citizen. In this way, citizens fight attempts to control them through the law by using the law. Thus politics in many societies is played out more in the courts than it is in the streets, more by the use of law and its disguised violence than by unfettered brutal force, absent of any legal constraint.4

Political claims became legal complaints as, increasingly, the courts became the primary dispute-resolution mechanism replacing Parliament, political struggles, community activism and engagement, and media campaigns.

This is not a phenomenon exclusive to South Africa, which prompts the question, why do governments then employ law as a means of political and social control if it can work against social control? The Comaroffs provide a plausible answer in their concept of ‘lawfare’: ‘As a species of political displacement, [lawfare] becomes most readily visible when those who act in the name of the state conjure with legalities to act against some or all of its citizens.’5 For example, former President Zuma’s government used law to advance an ideological battle by introducing controversial legislation and regulation, such as the Mining Charter proposed by Minister Mosebenzi Zwane or when it repeatedly floated the idea of a media tribunal to deal with unflattering coverage and effective investigative journalism.

Within a few years after democracy had dawned in South Africa, the political energy that had powered the sustained struggle against the apartheid regime began to be replaced by vigorous contests in court in the Zuma era, and the phenomenon continues. The stampede to the courts to invalidate elective conferences held by the provincial structures of the African National Congress (ANC) is a case in point. The courts have become a battleground for contesting political forces, not only between the state and its opponents, as was the case during apartheid, but even between contending forces within the governing party.

Lawfare should be understood as having a duality to it; it can be a good or a bad thing. It is a good thing for adjudication to be political, in the sense that it advances the constitutional project and is undertaken by litigants and judges as an instrument to ensure that the constitutional vision is realised. However, it is a bad thing when courts become the site of pure political contestation because politicians seek to usurp judicial powers to achieve their objectives. In both contexts, it draws the judiciary far further into the political arena than has traditionally been the case. It holds the promise of promoting more reasoned deliberation about key political and distributional claims, but it can also turn the courts into a juristocracy, thereby reducing the importance of politics and the vibrancy of civil society. It is here that the two parts of lawfare meet each other. Lawfare in its negative sense is most clearly seen when politicians employ the courts in political trials to marginalise or remove their political opponents. When civil society is vibrant, the use of law in this fashion contests the attempt to criminalise political opposition and, in turn, may employ the courts as a means to curb the (ab)use of law. And the stronger the voices of civil society, the more likely it is that a court will feel less constrained by political pressure and freer to exercise accountability over these forms of abuse.

Let us then begin with what could and should have been seen, at least from the moment that the criminal law was employed against Zuma before he became President. To be clear, ours is not an argument that Zuma should not be held accountable in a criminal court in respect of the 16 charges brought against him of corruption, money laundering and racketeering for 783 payments he received from his one-time financial advisor, Schabir Shaik. However, once he was charged, law and politics fused as competing factions in the ANC battled for political ascendancy. After the conviction of his co-accused, Shaik, in 2005, Zuma was dismissed as deputy president by President Thabo Mbeki. Expertly casting himself as the victim of a campaign of political interference aimed at preventing his rise to Number 1 citizen, Zuma turned to the courts. In 2007 he was charged on various counts of money laundering and corruption. On 12 September 2008, Judge Chris Nicholson held on procedural grounds that these charges were unlawful. This judgment proved to hold huge political implications. Not only did the judge set aside the prosecution of Zuma, but he also offered a number of scathing observations about the motivation for the prosecution, in particular about the political influence brought to bear by Mbeki and certain of his acolytes.

The result of the appeal against this judgment was an intemperate excoriation of Judge Nicholson by Judge Louis Harms, on behalf of a unanimous Supreme Court of Appeal. Correctly described by journalist Adriaan Basson as overwrought, Judge Harms accused Judge Nicholson of failing to apply basic rules of procedure and evidence in his critique of the prosecution. Although the harsh language of the rebuke was unjustified in our view, it is also clear that Judge Nicholson had overreached himself by delving into political questions that were not before him for determination, and his judgment’s findings about the ANC’s succession politics, which had surrounded the prosecutorial decision to pursue Zuma, far exceeded the narrow procedural case that he was called on to decide.

It is worth noting, though, that Nicholson’s musing ...